Edited transcript of June 22 Bryant case hearing | VailDaily.com

Edited transcript of June 22 Bryant case hearing

The following is the redacted transcript released Monday from the closed June 22 hearing in the Kobe Bryant case. It contains testimony from a defense DNA expert. The transcript does not contain rebuttal evidence from prosecutors.District Court | County of Eagle | State of Colorado | 885 Chambers Avenue | P.O. Box 597 | Eagle, Colorado 81631 | | Telephone Number:(970)328-6373 | | ** COURT USE ONLY ** ___________________________________|________________________ | Plaintiff: THE PEOPLE OF THE | Case No. 2003 CR 204 STATE OF COLORADO | | Defendant: KOBE BEAN BRYANT | ___________________________________|________________________ REPORTER’S REDACTED TRANSCRIPT OF PROCEEDINGS ____________________________________________________________ This matter came on for Hearing on Motions on Tuesday, June 22, 2004, before the Honorable W. Terry Ruckriegle, District Court Judge. ____________________________________________________________ Appearances: Office of the District Attorney Fifth Judicial District Mark D. Hurlbert, Attorney No. 24606 Greg Crittenden, Attorney No. 26001 Ingrid S. Bakke, Attorney No. 19680 Dana J. Easter, Attorney No. 14986 955 Chambers Avenue P.O. Box 295 Eagle, Colorado 81631 Telephone: (970)328-6947; Facsimile: (970)328-1016 HADDON, MORGAN, MUELLER, JORDAN, MACKEY & FOREMAN, P.C. Harold A. Haddon, Attorney No. 1596 Pamela Robillard Mackey, Attorney No. 15136 Kevin M. McGreevy, Attorney No. 27407 150 East 10th Avenue Denver, Colorado 80203 Telephone: (303)831-7364; Facsimile: (303)832-2628 IN CAMERA PROEEDINGS HECKMAN & O’CONNOR, P.C. Terrence P. O’Connor, Attorney No. 9574 P.O. Box 726 Edwards, Colorado 81632 Telephone: (970)926-5991; Facsimile: (970)926-5995 Wheeler & Clune, LLC. John C. Clune, Attorney No. 27684 Alpine Bank Building, Suite 101 P.O. Box 8612 Avon, Colorado 81620 Phone: (970)845-8680 Facsimile: (970)845-8604 E-mail: jclune@wheelerandclune.com ____________________________________________________________ INDEX Witness for Defense re: 18-3-407: ELIZABETH JOHNSON Direct Examination by Mr. Haddon 5 Cross-Examination by Mr. Hurlbert 35 IN CAMERA PROEEDINGS 3 1 MORNING SESSION, TUESDAY, JUNE 22, 2004 2 (Court convened this matter at 8:41 a.m., and the 3 following proceedings were held in camera with counsel and 4 Mr. Bryant present.) 5 THE COURT: Good morning, ladies and gentlemen. 6 The Court will call 2003 CR 204, People v. Kobe Bryant. We 7 are proceeding this morning on motions hearing relating to 8 continuation and completion of the Rape Shield evidence. 9 Are the People ready to proceed?10 MR. HURLBERT: Judge, Mark Hurlbert, Dana Easter,11 Greg Crittenden and Ingrid Bakke on behalf of the People.12 Also present is Mr. John Clune, the victim’s attorney and13 her representative.14 Judge, also sitting at the People’s side is15 Dr. Henry Lee, who’s an advisory witness, and actually an16 expert that’s going to listen to Dr. Johnson’s testimony.17 And also on our side is Dr. Michael Baden. Same thing,18 Judge, advisory witness.19 THE COURT: Thank you.20 MRS. MACKEY: Good morning, Your Honor. Terry21 O’Connor, Hal Haddon and Pamela Mackey on behalf of Kobe22 Bryant. He appears with us, Judge. Also in the courtroom23 for the defense are three lawyers, Mark Johnson, Kevin24 McGreevy, and Anne Lundberg. And we have three experts also25 present, Dr. Libby Johnson, Dr. Peter DuFour, and Yvonne 4 1 Woods of the C.B.I. 2 THE COURT: Thank you. 3 We are to proceed, then, I believe — beg your 4 pardon — going to start with Dr. Johnson. 5 Before we do, the clerk had tendered a couple of 6 orders. One relates to the stipulation on telephone 7 records, and when I was reviewing my materials, I found that 8 it had been granted, but apparently the order not actually 9 signed on May 10th based upon the stipulation, and so I will10 go ahead and sign that.11 The other is the order establishing deadline for12 the evidentiary orders regarding text messages, and the13 Court had granted until June 28th after yesterday’s14 discussion on that, and I will go ahead and sign that.15 There’s no objection to either of those.16 All right, then. Mr. Haddon.17 MR. HADDON: Yes, Your Honor. We call18 Dr. Elizabeth Johnson.19 THE COURT: If you would please raise your right20 hand.21 ELIZABETH JOHNSON,22 having been first duly sworn, was examined and testified as23 follows:24 THE WITNESS: Yes.25 THE COURT: Please be seated at the witness stand, 5 1 and speak up so everyone can hear you. The microphones are 2 on, as you know, you’ve testified before, so make sure that 3 you speak up loudly enough for everyone to hear you. 4 DIRECT EXAMINATION 5 BY MR. HADDON: 6 Q. Dr. Johnson, could you again tell us your name and 7 your business address? 8 A. Yes. It’s Elizabeth Johnson. 1534 North Moorpark 9 Road, number 364, in Thousand Oaks, California.10 Q. Have you testified previously in this case?11 A. Yes, I have.12 Q. And do you remember the dates that you testified?13 A. Um, early March. I don’t remember the date.14 Q. And were you qualified on March 2nd of 2004 as an15 expert in certain fields?16 A. Yes.17 Q. Do you recall what the fields were that you were18 qualified as an expert in?19 A. I believe it was evidence examination — forensic20 evidence examination, body fluid identification, and21 forensic DNA analysis.22 Q. All right. Dr. Johnson, I’m not going to23 reiterate all of the questions that I asked you on March 124 and 2, but just to give a little context, do you recall25 testifying on March 2nd about certain consumptive tests that 6 1 you witnessed at the C.B.I. in late February, February 25 2 through 27, of 2004? 3 A. Yes. 4 Q. And can you briefly tell the Court what you recall 5 about what was tested and what the results of those tests 6 were at the C.B.I? 7 MR. HURLBERT: Judge, objection. This is beyond 8 the scope of the fourth offer of proof. 9 MR. HADDON: It’s already in evidence and I’m just10 trying to set some context, Your Honor.11 MR. HURLBERT: And it’s cumulative.12 THE COURT: Well, I think since it’s been quite a13 while that we had previous testimony. To set the context is14 a legitimate purpose, so long as that is done.15 MR. HADDON: And I don’t intend to spend much time16 on it, I just want to bring it in focus.17 Q. (By Mr. Haddon) So you may answer.18 THE COURT: Go ahead.19 Q. What tests you observed at the C.B.I. on February20 25 through 27, and what the results of those tests were?21 A. Yes, I do.22 Q. Okay. Can you tell us generally what those tests23 were and what the results were.24 A. There were three items tested that were swabbings25 from Miss_______ inner thigh, and also swabbings of her 7 1 perineum area and her fingernails. 2 Q. With respect to the swabs from the inner thigh, do 3 you recall where they came from and in what form they 4 appeared prior to being swabbed? 5 A. According to the sexual assault examiner nurse’s 6 notes, I believe two swabs — there were circular areas 7 described, one on one thigh, two on the other thigh, and it 8 was areas of flourescence described by the nurse examiner. 9 Q. And with respect to the thigh swabs, do you recall10 what the results of the DNA testing were?11 A. Yes. Well, they were — actually was spermatozoa12 observed on the swabs. They were also positive for P30,13 which is a protein found in seminal fluid. And for acid14 phosphatase. Now that, the AP and the P30 test, was done15 prior to my being there, but I did observe the sperm16 microscopically.17 And the DNA result was that the — there was one18 primary contributor in the sperm cell fraction, and that was19 the same male individual that was found in the yellow20 panties.21 Q. And was that Mr. Bryant?22 A. No.23 Q. Can we refer to that person in this examination,24 the male contributor, as Mr. X?25 A. Yes, we — I think we go back and forth between 8 1 Mr. X and male one, so we mean the same person when we say 2 that. 3 Q. All right. With respect to the perineum testing 4 that you observed, can you tell the Court what the results 5 of that testing were? 6 A. Sure. The — the swab had previously been tested 7 positive for acid phosphatase and positive for P30, which is 8 a seminal fluid protein. We did observe spermatozoa on the 9 slide at that time that I was present, and the DNA in the10 sperm cell fraction was primarily — it was a mixture, but11 of DNA of Mr. X and Miss ________. Mr. Bryant is excluded12 as being a contributor to that sample.13 Q. And were there also fingernail clipping extracts14 which were tested in your presence in February of 2004?15 A. Yes.16 Q. And what were the results of those tests?17 A. I believe the DNA was from Miss________ as the18 source.19 Q. And these were fingernail clippings taken from20 Miss_________?21 A. Yes.22 Q. Do you recall whether or not there was any DNA23 from Mr. Bryant present in those fingernail clipping?24 A. There was not.25 Q. All right. Moving forward, did you, when you were 9 1 at the C.B.I., obtain certain split samples? 2 A. Yes. 3 Q. Can you tell the Court what split samples you 4 received from the C.B.I. and how they were split? 5 A. The splits that I received at that time were — or 6 observed being split at that time, and then they were 7 shipped to us later, were splits from Miss_______ sexual 8 assault kits of swabs, swabbings — wait a second. It was 9 swabbings from her neck and jaw, cervical swabs, oral swabs,10 buccal swabs, and vaginal opening swabbed, vaginal swabs,11 anal swabs.12 We also received splits of the penal swabs from13 Mr. Bryant, and digit swabs from Mr. Bryant. And we14 received the reference blood sample splits also, and then15 splits of the soaking solution that was used to soak off the16 thigh swab and the perineum swab.17 Q. All right. With respect to the swabs themselves,18 who did the splitting?19 A. Mrs. Woods and I were together looking at the20 swabs, and I — she asked me to choose which ones I wanted,21 and I chose, and she put them in separate packing for me.22 Q. When you say Mrs. Woods, is that Yvonne Woods of23 the C.B.I.?24 A. Yes.25 Q. And is she in the courtroom today? 10 1 A. Yes. 2 Q. The swabs, were they cut in half, or were there 3 two swabs that — that were present from each area of the 4 body? 5 A. Sometimes there were two — sometimes there were 6 four swabs, and I took two for my set, and sometimes if 7 there were just two swabs total, I took one. 8 Q. Were any of the swabs actually cut in two with you 9 taking half and C.B.I. retaining half?10 A. No. Not — not that dramatically. Sometimes11 there — sometimes one of the swabs had a small part of the12 tip removed that had previously been used by C.B.I. to do13 some presumptive tests.14 Q. All right. In addition to getting those split15 samples that you’ve described, did you also take possession16 of some physical evidence, or was it shipped to you, for17 analysis?18 A. Bulk evidence, you mean?19 Q. Yes.20 A. Yes, it was.21 Q. And can you tell the Court generally what that22 bulk evidence was?23 A. Various items of clothing from Miss _________.24 Sport coat, dress, shoes, and underwear, purple panties,25 yellow panties, and some of the crotch parts that were 11 1 excised from those. And clothing from Mr. Bryant. 2 T-shirts, outer clothing. 3 Q. And were all of these items of evidence, the 4 splits and the bulk clothing, subjected to analysis by a 5 laboratory that you work with in conjunction with? 6 A. Yes. 7 Q. And what’s the name of that laboratory? 8 A. Technical Associates. 9 Q. And who did the testing and analysis of all of10 this evidence?11 A. Pretty much everybody there, including myself. I12 think everybody was involved in — in it. The primary13 evidence examination of the items was done by myself and14 Mark Taylor.15 Q. Who’s Mark Taylor?16 A. Mark Taylor is the president of Technical17 Associates.18 Q. Okay. And did he participate in both the evidence19 examination and the DNA testing itself?20 A. He definitely participated in the evidence21 examination, and to — probably in the DNA testing. I would22 have to go through the data sheets to see. A lot — much of23 the time the actual extraction, amplification processes are24 handed off to an analyst, and then Mark and I analyze the25 data that resulted from those tests. 12 1 Q. All right. I want to ask you about some of the 2 tests that you conducted and what you found. And as a 3 preface to that, did you prepare a summary of those tests? 4 Of the tests you conducted, the DNA tests? 5 A. I prepared a report, yes. 6 Q. All right. That’s been probably provided to the 7 Court. I want to call your attention to Exhibit 1 of that 8 report. Do you have that in front of you? 9 A. Are you talking about the May 8th report?10 Q. The May 8th report?11 A. Okay. Table 1?12 Q. Table 1. Correct.13 A. Okay.14 Q. Do you have that in front of you?15 A. Right.16 Q. Let me ask you about various items of physical17 evidence and what tests you performed and what the results18 of those tests were.19 First of all, with respect to the purple panties.20 What kind of tests did you perform on the purple panties?21 A. Well, the panties and the crotch were separate, so22 they got separate evidence numbers. Initially they were23 photographed, examined under UV light, examined under24 visible light. We made tests, presumptive tests, for the25 presence of blood, which is ortho-tolidine and hydrogen 13 1 peroxide were our tests reagents. 2 We did testing for acid phosphatase, testing for 3 P30 protein. For amylase, which is an enzyme found in 4 saliva in high concentrations. And that was it at our 5 initial examination stage. 6 Q. How many cuttings did you take from the purple 7 panties, including the crotch, for examination? 8 A. Let’s see. There was one from the bulk of the 9 panties –10 Q. When you say bulk, where is that located11 physically?12 A. Well, that’s the part that remains with the13 waistband attached, and that’s what I call the bulk of the14 panties. And there were four taken from the part of the15 crotch that had been previously cut out by C.B.I.16 Q. Do you know where the C.B.I. took its cutting for17 C.B.I. and DNA analysis purposes, from the purple panties?18 A. Yes. From the string part, toward the rear of the19 panties.20 Q. Can you tell the Court what the results of your21 testing were with respect to the cuttings you took from the22 purple panties?23 A. Okay. Each of the cuttings?24 Q. Yes.25 A. Sure. The — in terms of presumptive tests or DNA 14 1 analysis or both? 2 Q. Both. 3 A. Both. Okay. Both. The first cutting that was 4 14-A was from the panties itself, and there were visible 5 blood staining and ortho-tolidine positive, so there was a 6 presumptive positive test for the presence of blood. That 7 particular cutting was positive for acid phosphatase and 8 P30, and a few sperm. And there were also some nucleated 9 epithelial cells there.10 In terms of the DNA testing itself, in the sperm11 fraction when we ran the STR testing at, the results were12 that there was a mixture. And again, confining my possible13 donors as we did in our chart to the three individuals,14 Mr. Bryant, Miss ________, and Mr. X, or male one, we found15 that male one was the — in a larger quantity than16 Mr. Bryant, and perhaps a trace of Miss _______ in that –17 in that sample.18 Q. In the sperm fraction you find both Mr. Bryant and19 Mr. X?20 A. Yes.21 Q. And Mr. X in larger quantities than Mr. Bryant?22 A. That’s right.23 Q. All right. Tell us about the second cutting you24 took from the purple panties, and what the results of those25 tests were. 15 1 A. The next cutting we took was our number 14-A1, and 2 that was from a portion of the string part of the — 3 Q. A portion of the string? 4 A. Of the string part of the excised crotch. It was 5 presumptive test for blood positive, with ortho-tolidine. 6 Positive for acid phosphatase and P30, and a few sperm were 7 detected. 8 There were — the actual DNA typing with STR 9 analysis was that Mr. Bryant, in the sperm fraction,10 Mr. Bryant was present in a larger quantity than male one11 and Miss ________ at roughly the same concentrations, male12 one and Miss _________.13 Q. So in that particular cutting of the string14 portion of the panties you find Mr. Bryant predominant, and15 also Mr. X or male one?16 A. Yes. They both are present, yes.17 Q. All right. Tell us about the third cutting you18 took from the purple panties.19 A. Okay. That’s our 14-A2. It’s a portion of the20 crotch. It’s ortho-tolidine positive, so there was blood21 present. Acid phosphatase and P30 positive. A few22 spermatozoa were detected.23 The sperm cell fraction on STR analysis was that24 male one was predominant, more so than Miss ________, and a25 trace of Mr. Bryant. There was a full profile of male one 16 1 detected and peak heights were quite high. 2 Q. And male one or Mr. X is the male who’s found in 3 the yellow panties? 4 A. That’s the same person. 5 Q. By the C.B.I? 6 A. Correct. 7 Q. And was there any trace of Mr. Bryant found in the 8 yellow panties by either you or the C.B.I? 9 A. No.10 Q. All right. Tell us about the fourth — I believe11 the fourth cutting from the purple panties.12 A. That’s our 14-A3. That’s another portion of the13 crotch, positive for the ortho-tolidine indicating presence14 of blood, and visible blood was seen. Acid phosphatase and15 P30 positive. A few sperm detected. In the sperm cell16 fraction on the STR analysis, the possible donors are that17 Mr. Bryant was predominant, then followed by Miss ________,18 followed by male one.19 Q. All right. And was there a fifth cutting that you20 took from the purple panties?21 A. Yes. That’s our 14-A4. It was ortho-tolidine22 positive, AP positive, P30 positive, a few spermatozoa were23 detected. The DNA typing was very low. We did not get full24 profiles on any particular person, but we — the alleles25 that we did detect could have come from these three 17 1 individuals. So it’s possible that all three people were in 2 there, it’s just very, very low profile. 3 Q. When you say allele, could you first spell it and 4 then tell the Judge what that is. 5 A. It’s a-l-l-e-l-e. And allele is a — it’s a 6 genetic marker. Usually people have — at any given genetic 7 location they will have one — they will have two alleles. 8 One from their mother, one from their father. It may appear 9 as though they only have one, and that’s because they got10 the same allele, or genetic trait, from their mother and11 their father.12 Q. Now, in addition to the tests you did on the13 purple panties, did you do tests on the cervical swabs from14 Miss ________ sexual assault examination kit?15 A. Yes.16 Q. And could you tell us what the results of your17 testing on Miss _________ cervical swabs were?18 A. Okay. Those are our 16-D, two cervical swabs.19 Weak positive for ortho-tolidine. That’s again the20 presumptive test for blood. The acid phosphatase test was21 inconclusive. The P30 test was negative. And we observed a22 few spermatozoa. The sperm cell fraction at the DNA on23 STR — on STR testing was that Miss _________ was24 predominant. Again, that’s carryover from the female25 fraction, from the non-sperm cells. And a low level of male 18 1 one, or Mr. X, as we call him. And Mr. Bryant is excluded 2 at that focus. 3 Q. So Mr. Bryant is excluded as a source of the sperm 4 you found on Miss __________ cervical swab? 5 A. Right. And we then outsource that extract for X 6 chromosome testing. 7 Q. Why’d you do that? 8 A. Well, Y chromosome testing targets only the short 9 tandem repeats on the Y chromosome. So any carryover10 contribution from Miss _________ would not be detected in11 doing that type of testing.12 Q. Who did the Y chromosome testing?13 A. A lab called ReliaGene.14 Q. And what were the results of their tests on the15 cervical swab extract?16 A. That was — they did a five focus examination,17 fiveplex, and they got results at four or five loci, and18 that was a single source, and it was a Mr. X. Mr. Bryant19 was excluded.20 Q. All right. Did you also conduct testing of the21 vaginal swabs which you received from the C.B.I.22 A. Vaginal or vaginal opening?23 Q. We can do either.24 A. Next on my list is vaginal opening, so.25 THE COURT: I’m sorry, I couldn’t hear you. 19 1 THE WITNESS: I said, next on my list is vaginal 2 opening. 3 Q. (By Mr. Haddon) Did you conduct tests of vaginal 4 opening swabs from Miss _______ sexual assault examination 5 kit? 6 A. Yes. 7 Q. And can you tell the Court what the results of 8 those tests were? 9 A. Yes. That’s our 16-K. It was one vaginal opening10 swab, positive with ortho-tolidine, positive with acid11 phosphatase and P30 testing. A few spermatozoa were12 detected microscopically.13 The sperm cell fraction, using the STRs in-house,14 was that Miss ________ was the predominant donor, again that15 was carryover from the female fraction, and Mr. — or male16 one, Mr. X, was also present. A full profile was detected,17 possibly a trace of Mr. Bryant. And then when that extract18 was sent or analyzed at ReliaGene with Y chromosome testing,19 male one, or Mr. X, was present at all four — at all five20 loci tested, and there was possibly some weak alleles at21 loci that could have come from Mr. Bryant. So he was22 missing at two, so that could be due to low level.23 A. At two loci of the five.24 Q. All right. Did you conduct testing on swabs taken25 from Miss____________ vagina? 20 1 A. Yes. 2 Q. And can you tell the Court what tests you 3 conducted and what the results of those tests were? 4 A. That’s our 16-M, and it was two vaginal swabs. 5 They were positive with ortho-tolidine, indicating — even 6 though they were not visibly stained they were indicating 7 chemical reactivity for the presence of blood. The acid 8 phosphatase was inconclusive. The P30 test was positive, 9 and there were a few spermatozoa present.10 And on the Profile Plus testing, the STR testing11 we did, Miss___________ was the predominant DNA donor of the12 sperm cell fraction, and male one was present. All of his13 alleles were present for male one. Mr. Bryant was excluded.14 Q. And these are swabs taken from the interior of15 Miss___________ vagina?16 A. That’s usually what a swab is, internally. An17 internal vaginal swab.18 When we sent that off for — I’m sorry, I said19 that was P30 positive. That’s P30 negative on that swab.20 THE COURT: I’m sorry. You said that P30 was21 negative?22 THE WITNESS: It’s P30 negative on the vaginal23 swab.24 THE COURT: You had previously –25 THE WITNESS: I may have. 21 1 THE COURT: And AP negative? 2 THE WITNESS: AP was — AP was inconclusive. 3 THE COURT: Inconclusive. Thank you. 4 I just — maybe now is a good time to maybe sure 5 you have all of the spellings. What do you need Michelle? 6 THE REPORTER: I’ll check at a break. 7 THE WITNESS: And then lastly, when that sample 8 was analyzed for the Y chromosome on the vaginal swabs, 9 there was results at five — all five loci that were tested,10 and it was male one present.11 The lab actually did two separate amplifications12 on that sample, and in one amplification it just showed13 single source, male one. In another amplification they had14 two weaker alleles come up at two loci, which could have15 come from Mr. Bryant, that would mean he would be — his16 alleles at three of the remaining loci would have dropped17 out. It was not reproducible between the two amplifications18 for the presence of a second donor, but male one was19 consistently present between their two amplifications at all20 five loci on that sample.21 Q. And you actually observed sperm in the vaginal22 swab?23 A. Yes.24 Q. Did you conduct any testing of Miss__________ anal25 swab? 22 1 A. Yes. And that is our 16-N, as in Nancy. It was 2 two anal swabs. These were not tested with ortho-tolidine, 3 they were weak positive for acid phosphatase and positive 4 for P30, and a few spermatozoa were observed. 5 The profile obtained using Profiler Plus, 6 in-house, was that male one and ___________ profiles were 7 approximately equal and in predominance over Mr. Bryant, 8 which could be Mr. Bryant’s profile. 9 And the Y chromosome testing showed that Mr. –10 male one or Mr. X was — results were obtained at four loci,11 and possibly Mr. Bryant’s alleles showed up at two loci, at12 a weak level.13 Q. I believe you previously said you conducted some14 tests on the yellow underwear, correct?15 A. Right.16 Q. Can you tell the Court in more detail what tests17 you conducted and what the results of those tests were?18 MR. HURLBERT: Objection, Judge. That is beyond19 the offer of proof.20 THE COURT: Response.21 MR. HADDON: I should look at the offer of proof.22 THE COURT: I guess we all could do that.23 MR. HADDON: Mrs. Mackey tells me that24 Mr. Hurlbert’s correct, that it is beyond the offer of25 proof, so I’ll move on. 23 1 Q. Did you conduct tests on Mr. Bryant’s T-shirt? 2 A. Yes. 3 Q. The T-shirt that police say he was wearing during 4 his encounter with Miss___________ — 5 MR. HURLBERT: Judge, that’s also beyond the offer 6 of proof. 7 THE COURT: What’s the date on that? 8 MR. HURLBERT: Judge, the offer of proof is May 9 21st, 2004.10 MR. HADDON: Your Honor, there is reference to11 C.B.I.’s findings with respect to the yellow panties, but12 not specifically Dr. Johnson’s and Technical Associates. So13 we will rely on the C.B.I. findings in that respect.14 THE COURT: All right. So then you’re going to15 amend that questioning with respect to Dr. Johnson?16 MR. HADDON: With respect to the yellow underwear17 we’re going to rely on the C.B.I. findings, with respect to18 this hearing. I am going to pursue a line of questioning19 with regard to the T-shirt and with regard to the penile20 shaft swabs, because they don’t show the presence of –21 MR. HURLBERT: Objection, Judge. The –22 THE COURT: Let him finish, please.23 MR. HURLBERT: Okay.24 MR. HADDON: They don’t show the presence of25 Mr. X, and therefore they’re not the kind of findings that 24 1 would be presumptively irrelevant in a Rape Shield. They 2 only show the presence of Mr. Bryant. But those tests are 3 important to the conclusions that are drawn. 4 THE COURT: Mr. Hurlbert. 5 MR. HURLBERT: Judge, it’s beyond the scope of 6 their offer of proof. It says the defense seeks to recall 7 Mrs. Johnson on June 21st with respect to the scientific 8 evidence referenced above. 9 The scientific evidence referenced above are10 contained in part A and B of our offer of proof. The sperm11 and semen of Mr. X is present. The male DNA from the sperm12 extracted from Miss __________ July 1, 2003, cervical swab,13 vaginal contents swab, vaginal opening swab and anal swab14 are all consistent with the DNA profile of Mr. X.15 That’s their offer of proof, Judge. I would ask16 that they be limited to that offer of proof.17 MR. HADDON: For purposes of a Rape Shield18 analysis only the presence of Mr. X is the subject of this19 hearing. The lack of presence of Mr. X relates to contact20 with Mr. Bryant, which isn’t subject to the Rape Shield law,21 and we wish to draw some conclusions from the lack of22 presence. And those are test results that Mr. Hurlbert has23 had for over a month.24 MR. HURLBERT: Not a part of Rape Shield, and25 what’s the relevance? If they’re relevant, then they should 25 1 have been included in their offer of proof. 2 THE COURT: Well, it’s not a part of Rape Shield, 3 so why are we going into it at this juncture? 4 MR. HADDON: Because some of the conclusions that 5 Dr. Johnson and other experts draw require reliance in part 6 on the lack of Mr. X on Mr. Bryant’s penile shafts and on 7 his T-shirt. And so although it’s not evidence that is 8 subject to exclusion under the Rape Shield statute, it is 9 evidence, direct evidence, that forms the basis for some of10 the opinions that are going to be expressed. Opinions that11 relate to evidence that is presumptively subject to the Rape12 Shield statute.13 THE COURT: Anything further, Mr. Hurlbert?14 MR. HURLBERT: No, Judge.15 THE COURT: Well, it is relevant to the issue16 relating to the presence or a lack thereof and the ultimate17 opinion. It is not subject to the requirement for the18 disclosure under the Rape Shield statute. The objection is19 overruled.20 Q. (By Mr. Haddon) Mrs. Johnson, Dr. Johnson, I want21 to ask you what tests you performed with respect to22 Mr. Bryant’s T-shirt, the T-shirt that he was allegedly23 wearing during his encounter with Miss___________?24 A. Okay. That’s a white Nike T-shirt, and then there25 was also some cuttings that were removed from that T-shirt 26 1 that we got from C.B.I. so they were examined together, 2 photographed, and there were presumptive tests made for the 3 presence of blood using ortho-tolidine reagents. We did 4 tests for the presence of amylase. We did tests for — 5 Q. Could you speak up a little bit? 6 A. I’m sorry. We did tests for the presence of 7 amylase, tests for the presence of P30 and extraction, a 8 differential extraction in such a way that we could see 9 sperm, or nucleated — epithelial cells, microscopic10 examination.11 Q. And how many cuttings did you take from that12 T-shirt?13 A. Um, in totality there were nine — between the14 cuttings from the shirt and the cuttings from the excisions15 that C.B.I. had previously excised, we tested nine samples.16 Q. And can you tell the Court in summary what the17 results of those tests were?18 A. Um, in summary — and then we did a DNA analysis.19 And in summary we found only Mr. Bryant and Miss _______.20 We found no indication of male one or Mr. X at all on any of21 the samples that we tested, at Technical Associates.22 Q. Let me ask you some questions about the penile23 shaft swabs that were tested. First of all, are you aware24 of the results of the C.B.I. testing on the penile shafts25 taken from Mr. Bryant on July 2nd, 2003? 27 1 A. Yes. 2 Q. And what were those results? 3 A. Um, only a mixture — I believe a mixture of 4 Mr. Bryant and ____________ were detected. There was no 5 indication of Mr. X. 6 Q. Did you also conduct tests on the penile swabs 7 from Mr. Bryant? 8 A. Yes. 9 Q. Can you tell the Court what the results of those10 tests were?11 A. Yes. We found P30 positive and a few sperm12 observed, and the spermatozoa were all single-source,13 Mr. Bryant. There was no Mr. X detected at all. There was14 also no — none of Mr. X detected in the non-sperm fraction.15 So he — Mr. X was not on that sample at all.16 Q. Now, based on the tests that you conducted and17 based on the tests that C.B.I. conducted that you’re aware18 of, have you been able to form any opinions with respect to19 the prosecution’s theory that the DNA from Mr. X was20 transferred from the yellow panties?21 A. Yes, I have.22 Q. All right. And what is your understanding of what23 the prosecution theory is regarding transference?24 MR. HURLBERT: Judge, objection. We’ve already25 been over this once before on March 2nd. I think we are 28 1 cumulative and beyond the scope of this particular hearing. 2 MR. HADDON: We went over it before we had the 3 benefit of their tests. 4 THE COURT: Well, it’s not beyond the scope. And 5 your response is that it was discussed prior to having the 6 benefit of the tests? 7 MR. HADDON: Yes. Prior to any of Dr. Johnson and 8 Technical Associate’s tests. 9 THE COURT: Reply.10 MR. HURLBERT: We’re talking about two different11 things here, Judge. What she has testified to here today is12 the DNA found inside the vaginal opening, the vaginal swabs,13 the cervical swabs, and the anal swabs, and also the purple14 G-string. That’s what we’re talking about here today.15 What they’re trying to bring in is the DNA found16 on the two parts of the perineum and the inner thigh, and,17 Judge, we have already been over that, we have already done18 that on March 2nd, and that’s the People’s idea that it –19 that the transfer comes from those. So we are talking about20 two different issues here.21 THE COURT: But the objection as to cumulative is22 with regard to testimony prior to these testing being23 conducted.24 MR. HURLBERT: Correct. Correct. These tests25 are — as I said, these tests are different tests, they’re 29 1 different parts of the body, they’re on different pieces of 2 evidence than the tests that were done before, which is the 3 consumptive testing that Dr. Johnson did with Agent Woods, 4 which we went over with on March 2nd. 5 THE COURT: In that context of the tests that had 6 been completed at that point in time. 7 MR. HURLBERT: Correct. But these are two 8 distinctly different tests. 9 THE COURT: Objection’s overruled.10 Q. (By Mr. Haddon) I think I was at the point of11 asking you what your understanding of the prosecution’s12 transfer theory is?13 A. Well, my understanding of their theory is that14 Miss __________ put on a pair — the yellow panties that had15 semen in them to — REDACTED16 that is semen and sperm from Mr. X, and that those yellow17 panties with this dry semen stain are the source of all of18 the sperm and semen attributable to Mr. X found on her body,19 in her internal swabs, and basically everywhere that Mr. X20 is found, and that would include the purple panties as well.21 Q. And do you have an opinion to a reasonable degree22 of scientific certainty as to whether or not the scientific23 evidence supports that theory?24 A. I do.25 Q. And what is your opinion? 30 1 A. My opinion is that that transfer theory cannot 2 support all of these findings in totality. 3 Q. And can you explain that to the Court, what are 4 the bases for that opinion? 5 A. Sure. Well, first of all, the thigh swabs that 6 were taken from Miss __________, and the source of the sperm 7 in the thigh swabs was Mr. X. It also contained detectible 8 seminal fluid protein. There was no indication of blood 9 present on those thigh swabs. I test — I tested those,10 Mark Taylor at Technical Associates, and it was negative11 with ortho-tolidine, which is a very, very sensitive12 chemical test reagent.13 Q. And was that the same result C.B.I. got?14 A. They found no blood on the swab. They used a15 different test reagent, phenolphthalein, but it is also very16 sensitive. So those swabs were negative for blood.17 Q. Why is that significant?18 A. Well, the yellow panties were visibly blood19 stained, heavily stained with blood, and in order for the20 yellow panties to be a source of — or for sperm and semen21 to be transferred from the yellow panties, they would need22 to be rewet in order to be — for this material to transfer23 to her thighs. This was not crusty, flaky material in the24 yellow panties, it was well absorbed into the material. So25 the material, the biological cellular material in the yellow 31 1 panties would need to be wet and then deposited on her 2 thighs. 3 Well, if you assume the wetting agent is blood, 4 then the blood would have also transferred to her thigh 5 area, and that is not detected in these tests. 6 Also the examiner described them as circular 7 spots. I think it would be highly coincidental for someone 8 in the act of putting on underwear to make three separate 9 circular spots on their thighs, if in fact all three or even10 one is, you know, the source of the semen, which is what the11 nurse examiner collected.12 In terms of the external genital swabs, the13 perineum swab, the vaginal opening swab, those samples could14 possibly transfer — enough sperm and semen could transfer15 from yellow panties to those areas to explain Mr. X being16 there, but it is highly unlikely to explain how that17 material got internally, and especially on the cervical swab18 and the vaginal swab. That seems very unlikely.19 REDACTED20 ///21 ///22 ///23 ///24 Transfer from the yellow panties doesn’t explain25 Mr. X in the purple panties, and he was present in multiple 32 1 cuttings on the purple panties. 2 And more importantly, or very importantly, I would 3 say, not maybe more importantly, the fact that Mr. Bryant’s 4 T-shirt which he wore at the time, so we’re talking about a 5 snapshot forensic evidence at the time this event, alleged 6 assault happened in the hotel room, neither — none of the 7 nine samples that we tested, nor did the two samples that 8 C.B.I. tested from his Nike T-shirt, showed any indication 9 of Mr. X at all.10 Now, if Mr. X had been present, if his sperm had11 been present internally at the time Mr. Bryant penetrated12 her, we would expect to find some sample, some low-level13 amount of sperm from Mr. X on some of those samples or on14 his penile shaft swab, and those aren’t — that’s not found15 at all. Nothing from Mr. X is found on the any key T-shirt16 or on Mr. Bryant’s penile shaft swab.17 So in totality, it’s just extremely far-fetched18 and unlikely that transfer from the yellow panties could19 account for all of these findings.20 Q. All right. Have you also been able to form an21 opinion based on a reasonable degree of scientific certainty22 as to whether the evidence supports the conclusion that23 Mr. X, or male one, whomever you choose to call him, had24 sexual contact with Miss __________ after Mr. Bryant?25 A. Yes. 33 1 Q. And what is your conclusion? 2 A. Well, given the lack of Mr. X anywhere on the nine 3 samples, or actually 11, between what we tested and C.B.I. 4 tested on the Nike T-shirt, and their testing of penile 5 shaft swab Mr. Bryant, and our testing of the penile shaft 6 swab from Mr. Bryant, that it is likely that there was not 7 any sperm from Mr. X inside Miss _______ at the time 8 Mr. Bryant had his encounter with her, and that sexual 9 contact, taking everything in totality, likely occurred10 after Miss ___________ and Mr. Bryant were together.11 Q. Is the presence of Mr. X in the purple panties a12 factor in your conclusion in this regard?13 A. Yes.14 Q. Why?15 A. Well, again, Mr. X is present in more than one16 cutting from the purple panties. In one particular cutting,17 I think it’s 14-A2, he is the predominant donor. It’s18 indisputable profile obtained with very good peak heights,19 and it’s just very unlikely that transfer from the yellow20 panties are serving as the source of transfer to all of21 these different areas, in the purple panties and on her body22 swabs.23 Q. Is it a factor in your conclusions that24 Miss __________ told Detective Winters that the panties were25 clean when she put them on? 34 1 A. Yes. 2 Q. And why is that important? 3 A. Well, if they are clean — if they were clean on 4 the morning that she put them on, then this presence of 5 Mr. X in the purple panties could not have been due to 6 drainage from her if in fact she had had sexual contact with 7 Mr. X earlier that day. That’s not — any of that wouldn’t 8 be a factor. 9 The other thing is that, not in regard to the10 purple panties but the thigh swabs, I believe she was — her11 statement was she showered on the morning of the 30th. So12 the deposit on her thighs would have to be made sometime13 that day, during that — during June 30th. Or I guess14 between the morning of June 30th and her sexual assault15 examination.16 MR. HADDON: I have nothing further, Your Honor.17 THE COURT: Cross.18 MR. HURLBERT: Judge, considering that we went19 into some areas that was beyond — the People feel was20 beyond the scope of their offer of proof, can we take a21 ten-minute break so I can talk to Dr. Lee about some of this22 new stuff that came out?23 THE COURT: Sure.24 MR. HURLBERT: Thank you, Judge.25 THE COURT: We’ll take a recess. You may step 35 1 down. 2 (A recess was then taken.) 3 THE COURT: Mr. Hurlbert. 4 MR. HURLBERT: Thank you, Judge. 5 CROSS-EXAMINATION 6 BY MR. HURLBERT: 7 Q. Good morning. 8 A. Good morning. 9 Q. It’s Dr. Johnson, right?10 A. Yes.11 Q. I just want to make sure I get it right.12 And looking at your CV, it looks like you’ve been13 doing this for quite a while, haven’t you?14 A. Since the end of 1991.15 Q. ’91. So you’ve done a bunch of DNA testing, all16 that, right?17 A. Yes.18 Q. And you even worked for a crime lab, right,19 Houston?20 A. Harris County.21 Q. Harris County. Now let’s talk about this case.22 You said that a whole bunch of people did the testing on23 this, right?24 A. The lab staff, yes.25 Q. Lab staff. 36 1 A. And myself. 2 Q. In the report on here, it says that you reviewed, 3 you reviewed the testing, right? 4 A. Yes. And I reviewed data and authored part of the 5 report, as a matter of fact. 6 Q. You and it looks like a Betty Lynn and — 7 A. And Mark Taylor. 8 Q. And Mark Taylor. 9 Now, on the notes it mentioned a person named10 J.E.B. Do you know who J.E.B. is?11 A. Jessica Bickham.12 Q. Could I get the spelling of that, last name?13 A. Last name? I think it’s B-i-c-k-h-a-m.14 Q. And who is she?15 A. She’s a technician. She does not do the actual16 case sample analysis, but she’ll do some of the presumptive17 tests stuff, like the P30s and that sort of thing.18 Q. And there was also a C.M.C. Who’s that? C.M.C?19 A. C.M.C. That’s Carley Cardenas.20 Q. And could I get his last name spelled, too?21 A. C-a-r-d-e-n-a-s.22 Q. And is he another lab tech?23 A. Yes.24 Q. And what sort of stuff does he do?25 A. The same type of thing that Jessica does. They’ll 37 1 log in evidence, do the same type of thing, the same 2 presumptive tests. Sometimes make the slides, or process 3 the slides once they’re made. But they don’t actually do 4 the actual extractions. 5 Q. So on the — so on the — and do they work for 6 TAI? 7 A. Yes. 8 Q. And so on the four samples that we’re really 9 talking about here, the — although I guess there’s four –10 there’s three crotch samples of the purple G-string11 underwear, the cervical swabs, the vaginal swabs, the anal12 swabs, those — those that we’re talking about here, who did13 the extractions on those, do you know?14 A. I would have to look through the data sheets and15 see.16 Q. Was it you?17 A. No, I didn’t do the extractions. I examined the18 purple panties. Betty Lynn took the actual swabs, the body19 swabs, and I think she did the extractions. I would have to20 look at the actual data sheets to see who did every piece of21 the analysis.22 Q. How about — now, you said that you have these lab23 techs to do the P30 testing. Most likely they did the P3024 testing on this — on the evidence that we’re talking about?25 A. I think so. Again, I would have to look at the 38 1 data sheets to see. 2 Q. Just — it wasn’t you, though, right? 3 A. It wasn’t me. 4 Q. And the amylase is probably the same thing? 5 A. Same thing. 6 Q. You didn’t do the amylase? 7 A. That’s correct. 8 Q. Now, how about the PCR, which that’s the real DNA 9 testing, right?10 A. Well, it’s all of the DNA testing. That’s the11 amplification stuff.12 Q. The amplification stuff. Do you know who did13 that? Do you know on this part?14 A. There were many amplification runs, so it would be15 on each data sheet.16 Q. Did you do any of these?17 A. No. I did the evidence examination, I looked at18 the slides, recall the sperm or the nonnucleated epithelial19 cells. I looked at the data once it came off. I did20 actually observe some of the acid phosphatase testing, and21 then the final data, reviewed that. I worked on the report22 for days — days and days — reviewing all — reviewing the23 data, going back and looking at the slides, and that sort of24 thing.25 Q. And doing the report for days and days was 39 1 probably the least — least fun of the whole process, huh? 2 A. It was grueling. 3 Q. You know, I had a whole list of other things but 4 you answered all of those questions, so let’s move on a 5 little bit to — now let’s move on to the actual testing. 6 A. Okay. 7 Q. And let’s start first of all with the purple 8 G-string underwear. 9 A. Okay.10 Q. Okay. And it looks like you did one test of, for11 lack of a better word, the major portion of the underwear,12 and then three tests on the crotch area, right? Do I have13 that right?14 A. Let’s see. We did one — one cutting from the15 bulk park, and then four — four cuttings from the excised16 part, the crotch excision that came — that came to us17 packaged separately from C.B.I. And those were the 14 –18 14-A1, A2, A3, and A4.19 Q. And on those tests, in your report you have that20 there is — sperm was found, correct?21 A. Yes.22 Q. And it has a little E there. And when you go back23 to the key, it says E is fewer than one cell per HPF. What24 does HPF mean?25 A. That’s high-powered field. That’s 400 40 1 magnification. 2 Q. So that’s under the microscope? 3 A. Right. 4 Q. So basically when there is an E, that’s one sperm 5 cell? 6 A. No. That’s — if you scan the whole slide and you 7 could find one or you could find 50. If you — and we scan 8 the whole slide, meaning we view the whole slide, and there 9 was — the spot made on the slide. And so it varies. It10 could be two, three. Our computer on the data sheet will11 not allow us to put an extra character in, so it has to come12 up each, it won’t let us say two each, it just lets us say13 each. But we record the actual number, when we can, on the14 slide itself.15 Q. So do you know how many were on the, let’s say,16 2063.14-A1, the portion — the portion string purple17 panties? It says E?18 A. That one said, let’s see. It had an “each” on the19 slide. That — there were very few. So –20 Q. What does that mean? That mean — and I guess I’m21 trying to — what does very few mean? Unfortunately I’m not22 as skilled as you are, so I’m kind of trying to get some of23 the — what you mean by very few?24 A. Again, we didn’t actually score a number on that,25 but I would say less than five on the portion that we 41 1 made — on the portion of the cell pallet that we took for 2 the slide, and that was — again, you have to bear in mind 3 that there’s only a portion taken to put on the slide, and 4 it’s usually two microliters out of 50, and it was in that 5 case, two out of 50. 6 Q. And you said you found probably right around five? 7 A. No. I said it was probably less than five in that 8 case, in each. 9 Q. And how about on 14-A2, the portion of the crotch10 purple panties?11 A. On the slide, there was two observed on the slide.12 Q. How about the next one, how about 14-A3?13 A. Again, that was scored with an each. So I’m going14 to say less than five.15 Q. Less than five. And how about also the next one,16 14-A4?17 A. That was scored with just an each, so less than –18 safe to say less than five.19 Q. And these are five sperm –20 A. Right.21 Q. And we think of sperm with little head and little22 tail, right?23 A. Well, tails are usually gone by then, but little24 head at least.25 Q. So on most of these it was probably just a head on 42 1 it, right? 2 A. (Nods head.) 3 Q. And did you take any photos of this? 4 A. Of the sperm? 5 Q. Yeah. 6 A. No. Because they’re on the slide, and we save the 7 slide. 8 Q. Now, you talked about the yellow underwear, and 9 it’s kind of all in the same — on the same page. It says10 that you — that’s two plus, it looks like the sperm is.11 That is — make sure the record’s clear. 2063.14-B1, the12 front portion crotch area of the yellow underwear. It has13 two plus, and the key says two to ten cells per high-powered14 field, right?15 A. Right.16 Q. So it’s quite a bit more than the two or five or17 less than five that you get when you get an E, right?18 A. Yes. It’s quite a bit more.19 Q. And then three plus is on the right brownish stain20 crotch area of the yellow underpants, and that is ten to 5021 cells?22 A. Right.23 Q. So it’s even more than that, correct?24 A. Right.25 Q. And then if you go up to the T-shirt, which is 43 1 kind of near the top, 206.308D, the portion, OT positive, 2 smear inside front shirt, it’s one plus, which is 100 cells 3 per slide to one cell per sell, so it’s — 4 A. That’s one per how-powered field. 5 Q. Yeah. One per high profile, but 100 cells per 6 cell is what it sounds like? 7 A. Well, usually if we see one per high-powered field 8 we call it a one plus. So that’s less than — 9 Q. Less than the others, but more than the E10 portions?11 A. Right.12 Q. Let’s move on to the cervical swabs on the next13 page of your report. Page 11 of 17. It says — and this14 is, for the record, 2063.16-D — two OT positive, cervical15 swabs, Miss___________. And on the presumptive test on that16 you got AP inconclusive, right?17 A. That’s right.18 Q. Now, what does AP inconclusive mean?19 A. Those particular — that particular sample and20 some of these others I actually saw the tests run on those,21 turned a little bit of orange, and proper color is pink for22 acid phosphatase. So it wasn’t colorless, which would be23 negative, it was kind of — it was the wrong — or not the24 typical color. So we called it inconclusive.25 Q. And are you going to get a better reading if 44 1 there’s more sperm there? 2 A. Well, that — 3 Q. Or is it semen? 4 A. Semen. 5 Q. Semen. Are you going to get a better reading if 6 there’s more semen there? 7 A. Yes. And vaginal secretions can cause a positive 8 reaction. It’s typically a much slower reaction. And that 9 may be, you know, what was causing this. It was just not10 the typical pink color change. So we called it11 inconclusive.12 Q. And at P30 you got negative on that, right?13 A. Right.14 Q. And you also on this for sperm, it says E again.15 Is that going to be — do you know how many that is?16 A. Two each.17 Q. Two?18 A. On our portion of this slide. Portion taken from19 this slide.20 Q. And move down to the vaginal opening swabs,21 2063.16-K?22 A. Right.23 Q. And looks like you got positive for AP and24 positive for P30, right?25 A. That’s right. 45 1 Q. And how many sperm did you have there? You have 2 an E also? 3 A. Seven each. 4 Q. Seven. And the vaginal swabs, let’s go down to 5 the next one, 2063.16-M, the vaginal swabs, again you got an 6 AP inconclusive it looks like on that, right? 7 A. That’s right. 8 Q. Was that an orange color — or can it change 9 another color, too?10 A. I’ve never seen it another color.11 Q. Pretty much orange and pink, or nothing, I guess?12 A. Right.13 Q. And you got negative also for P30, right?14 A. Negative for P30.15 Q. And how many sperm did you find there? You also16 had an E?17 A. Three on that slide.18 Q. Three on that slide. And 2063.16-N, which is the19 anal swabs?20 A. Uh-huh.21 Q. It says you got weak AP?22 A. Right.23 Q. Now, what does weak AP mean?24 A. A slower — slower reaction.25 Q. It still turns pink, it just takes a little longer 46 1 to do? 2 A. Right. 3 Q. And how many sperm did you find on that? 4 A. Five on the slide. 5 Q. Now, by finding sperm in there, that doesn’t 6 necessarily mean anal sex, does it? 7 A. No. 8 Q. That could potentially mean drainage from the 9 vagina as well?10 A. Yes, it could.11 Q. Now, you said that you have looked at the reports12 from the SANE nurses, right?13 A. Yes.14 Q. Did you actually talk to the SANE nurses at all?15 A. No.16 Q. Do you know how they collected this — did the17 collection of the, say the cervical swabs or the vaginal18 swabs?19 A. I, in discussions with the attorneys, were told20 that there — they stated that they were internal swabs.21 Q. Internal swabs. Well, and to do an internal swab,22 I mean you can’t — do you know anything about this at all,23 before I ask you these questions, do you know anything about24 the collection of a rape kit?25 A. I have a general understanding of how these swabs 47 1 are collected, yes. 2 Q. I mean, you can’t really — I don’t want to be 3 crude here, but the vagina is not really like a tube, right? 4 There is no — there is a potential chance that you can, as 5 the swab is going in, touch the sides of the vagina, touch 6 the openings of the vagina as you’re going in, isn’t that 7 true? 8 A. Well, they’re supposed to use a speculum and take 9 a truly internal swab that would not be touching the vaginal10 opening as it’s inserted.11 Q. That’s what they’re supposed to do. Do you know12 if that’s what happened here?13 A. My understanding is their statement that that was14 the way it was collected.15 Q. Now, you said that, if I’m right, you said that16 there are — that sperm can sometimes last inside the vagina17 for five days, the studies you’ve seen can last for up to18 five days?19 A. Yes.20 Q. And it can be even longer in the cervix, can’t it?21 A. I haven’t seen anything to that effect.22 Q. So you haven’t read the words by Sharp, I think23 it’s N. Sharp, who said it can go up to 17 days even, in the24 cervix?25 A. I’m not familiar with that. 48 1 Q. But anyway, even in the five days, just the sperm 2 inside the vagina doesn’t tell you when sex is, does it? 3 A. No. The numbers typically decrease over time, in 4 a live individual. 5 Q. And that’s another thing is the numbers decrease 6 over time, right? 7 A. Due to drainage and dilution, yes. 8 Q. So if you have a woman who has sex hours before a 9 rape exam, say she has consensual sex hours before a rape10 exam, she doesn’t change her underwear, she doesn’t shower,11 you are going to find generally a lot of sperm in there,12 aren’t you?13 A. I’m sorry, I didn’t catch the first part of your14 question. Can you say that again.15 Q. All right. A woman who has sex –16 A. Okay.17 Q. — just before hours, let’s say three, four hours,18 before a rape exam, she doesn’t shower, she doesn’t — she19 doesn’t change her underwear, you are going to find — and20 it’s unprotected sex, so I got that right — you are going21 to find a lot of sperm in there, aren’t you?22 A. Not necessarily.23 Q. Not necessarily. Well, you certainly are going to24 have a positive for P30, right?25 A. No. It depends on how the sex occurred, if there 49 1 was ejaculation internally or not. I mean, we’ve seen 2 plenty of instances in case work where there was penetration 3 without ejaculation, we don’t find any or many sperm. We 4 don’t find P30. It depends on how the sex occurs. I mean, 5 it can be very — 6 Q. But if there is ejaculation, then generally you’re 7 going to find a lot of sperm? 8 A. If it’s internal, yes. If it’s a full ejaculate 9 internal, yes. If it’s partial, no. If it’s just10 penetration, few to none.11 Q. Now, what exactly is P30?12 A. P30 is a protein that is found, is a prostate –13 thought to be a prostate specific protein produced by the14 prostate gland produced in high levels in the seminal fluid.15 Q. Are these only this males, then?16 A. There have been a few studies using a very17 sensitive radioimmunassay test in which that has been found18 in some fluids of urine of men that have prostate cancer or19 breast milk from some women, even, but it’s a different type20 of test they are employing than what we are using here.21 Q. So if, I mean, for your testing it is basically a22 male — it comes from the male, P30, for purposes of your23 testing?24 A. For the purposes, yes, here.25 Q. And what is AP? 50 1 A. Acid phosphatase. 2 Q. And what’s that? 3 A. It’s an enzyme found in — much higher levels in 4 seminal fluid. It can be — it is present in lower levels 5 in vaginal fluid. The tests that are used for forensics, 6 generally the vaginal fluids will cause a much slower 7 reaction, so there’s a certain time at which you cut off, 8 you know, calling your test result so that you don’t confuse 9 vaginal fluids as being a positive.10 Q. So generally also with your testing, if this is a11 male, AP is something that comes from the male?12 A. No, not with AP. We certainly recognize the fact13 that there can be some AP activity, weak activity, from14 vaginal fluids.15 Q. Now, you said that it’s your theory that the –16 make sure I got the right wording on this. It’s your theory17 that based upon the evidence that the victim had sexual18 relations with another man after the rape, right?19 A. Um, I never said that she was raped, and I said it20 was sexual contact after her contact with Mr. Bryant.21 Q. Sexual — sexual relations with male number one22 after the encounter with Mr. Bryant?23 A. I phrased it as sexual contact, yes.24 Q. The — it’s your theory?25 A. It’s my opinion. 51 1 Q. It’s more of a hypothesis, isn’t it, rather than a 2 theory? 3 A. It’s an opinion based on examination of this 4 evidence, interpretation of the results. It’s based on a 5 lot of scientific findings. So it’s my opinion based on the 6 scientific findings. 7 Q. But you didn’t — you didn’t do any empirical 8 studies or you didn’t take somebody with the same type of 9 underwear, the same body build, and do testing or anything10 like that, right? This is just based upon your findings?11 A. And do what with the underwear?12 Q. Well, did you — put it this way. Did you do any13 empirical testing to back your theory?14 A. We’ve done some transfer studies on various types15 of things, some of which includes underwear. But my opinion16 is not based on one piece of evidence here or one finding17 here, it’s based on a number of findings.18 Q. And it’s a hypothesis, actually?19 A. Well, it’s a hypothesis that is my scientific20 opinion based on these findings, and my interpretation of21 them.22 Q. I understand the terminology, so that’s all –23 A. Okay. Whatever.24 Q. Now, in your hypothesis you said that the — the25 transfer really couldn’t have happened, essentially, 52 1 correct? Or highly unlikely? Is that a better way to put 2 it? 3 A. No, I said it couldn’t explain the presence of 4 Mr. X’s sperm everywhere in the absence of it on other 5 strategic items of evidence. Certainly it could explain a 6 particular item of evidence, the findings on a particular 7 item of evidence taken in isolation, as I mentioned earlier. 8 REDACTED 9 ///10 ///11 ///12 Q. Let me ask you this. Did you — did you ever see13 how the victim in this case wore her underwear?14 A. No.15 Q. Whether it was tight on her or loose on her?16 A. No.17 Q. Did you ever see that?18 Do you know whether the — whether the victim was19 on her menstrual cycle?20 A. I believe she was not menstruating.21 Q. But you don’t know how far away from her menstrual22 cycle she was?23 A. I think it was June 21st was her last cycle.24 Q. Now, on the yellow underwear, in your report, page25 4 of 17, it’s item number 2063.14-B, about halfway down. It 53 1 says, “In addition to the semen, there are also dilute blood 2 stains visible on this material.” 3 Let’s first of all talk about the blood on the 4 crotch portion of the yellow panties. Was the crotch 5 portion of the yellow underwear soaked in blood, or were 6 there spots of blood? 7 A. It was very noticeably stained with blood. 8 Q. But it was just spots, right? 9 A. They were large spots. Most of the area was blood10 stained.11 Q. And you said it was dilute. Dilute with what?12 A. I don’t know. It looked — it did not look to be13 concentrated in any particular area. That’s the terminology14 of observation. There are photos of it.15 Q. So it could have been sweat, could have been16 water?17 A. No, I don’t think so.18 Q. Why don’t you think it was sweat?19 A. It was distributed over too large of an area20 to have been diluted by sweat.21 Q. A person, woman can’t sweat throughout her whole22 crotch?23 A. It’s possible. It did appear to be a little24 heavier in some spots, a little more dilute in other spots.25 We have very good photos of this, if you would like to see 54 1 them, so. 2 Q. No. That’s all right. But this was late June, 3 early July, in Eagle. Do you know what the temperature was 4 during that time? 5 A. I have no idea. 6 Q. So it could have been hot? 7 A. Possibly. 8 Q. I suppose it could have been water that it could 9 have been diluted with, right?10 A. Could have been.11 Q. You just don’t know, you didn’t do any testing?12 A. I don’t know. I know where the areas were blood13 stained, where the areas were semen stained, and most of14 those overlapped. There was blood in every area that semen15 was detected.16 Q. Now, and you are also making your assumption on17 the fact that the victim said at one point that she18 cleaned — the yellow underwear she had on was clean, right?19 That’s part of your hypothesis?20 A. No, not really. I mean, I initially I know there21 was a statement that that pair of underwear was clean. I’m22 also aware of a statement that the purple pair was clean the23 day that she put them on, June 30th.24 Q. You’re also — are you aware of statements where25 she says, well, I’m not so sure, this could have been just 55 1 left on my floor? 2 A. That’s right. 3 REDACTED 4 /// 5 /// 6 /// 7 /// 8 /// 9 ///10 ///11 ///12 ///13 ///14 ///15 ///16 ///17 ///18 ///19 ///20 ///21 ///22 ///23 ///24 ///25 /// 56 1 /// 2 /// 3 /// 4 Q. Were there also — the blood was diluted. Was 5 there also these stains of this unknown diluted material in 6 areas where there wasn’t blood? 7 A. Okay. I’m not sure what you’re asking me. 8 Q. You said — let me do this step by step. 9 You said that there was blood on the yellow10 underwear in spots, basically?11 A. It covered most of the crotch area.12 Q. And it was — it was diluted with some unknown13 substance, right?14 A. Well, some areas appeared to be uniform, so to me15 it looked like diluted — the blood was diluted and it16 spread out more uniform.17 Q. Spread out to be more uniform?18 A. Correct.19 Q. Was there — was the areas where it didn’t have20 the blood, was the semen diluted from this unknown substance21 also?22 A. I couldn’t tell you if the semen was diluted or23 not. I mean, there was detectible acid phosphatase24 activity, detectible P30 activity, and large numbers of25 spermatozoa. So, I mean, it’s hard to quantify dilution of 57 1 semen in a pair of underwear. 2 Most of the areas on the crotch of the panties 3 contained visible blood staining, and I believe everywhere 4 that there was AP activity there was also blood staining. I 5 believe there was one place where there — a few places 6 where there was weak OT activity and no AP activity. But 7 wherever there was semen, there was also detectible — blood 8 detected by ortho-tolidine. I would have to look at the 9 photos just to refresh my recollection.10 Q. So wherever there was blood, there was semen?11 A. Wherever there was semen –12 Q. Semen, there was blood?13 A. — there was blood.14 Q. Where there was semen, there was blood.15 A. Right.16 Q. And — now you said — was it you that did the17 testing as to transfer from clothing to — transfer of semen18 from clothing to the body, or was that somebody else?19 A. There were several sets of experiments, and I was20 involved in those, yes.21 Q. Involved in those. How many — how many pieces of22 underwear did you test?23 A. Okay. Well, one set of experiments didn’t involve24 underwear at all.25 Q. Okay. 58 1 A. Okay. So we’re talking about semen-stained 2 underwear and transferred to the body. 3 Q. Yes. 4 A. That involved one experiment, and it was an 5 intentional effort to see if semen could rub off onto a 6 thigh — 7 Q. Did you publish any of those results? 8 A. No, haven’t yet. They’re probably all going to go 9 in one paper someday.10 MR. HURLBERT: I have no further questions at this11 point.12 MR. HADDON: Nothing further, Your Honor.13 THE COURT: Thank you. You may step down.14 MR. HURLBERT: Judge, may I have a moment?15 THE COURT: Sure.16 MR. HURLBERT: Thanks, Judge. I guess I want to17 know if the defense is done.18 MRS. MACKEY: Waiting for Mr. Haddon.19 THE COURT: Next witness?20 MR. HADDON: Your Honor, that’s our last witness.21 We have Mrs. Agent Woods for rebuttal of Dr. Lee.22 MR. HURLBERT: Judge, given the cross-examination,23 the People have no witnesses.24 THE COURT: All right, then. Does that conclude25 the evidence with regard to the Rape Shield — excuse me — 59 1 Rape Shield hearings? 2 MRS. MACKEY: Could we have just a moment, Judge? 3 Judge, one suggestion. We do have Agent Yvonne 4 Woods here, she was prepared to testify. The Court has 5 ordered us to give a summary of her anticipated testimony 6 within five days. I would like to request that in lieu of 7 that we just allow her to testify now and have that 8 testimony serve as the summary of her anticipated trial 9 testimony.10 MR. HURLBERT: Judge, we would prefer the summary11 of testimony.12 THE COURT: Well, that’s a different procedure.13 Certainly more convenient, but somewhat unorthodox.14 MRS. MACKEY: It would save us a lot of time,15 Judge.16 THE COURT: Yeah, I understand that. But I will17 decline your request and require that the summary be18 provided.19 And so the answer to my question is that you have20 no further evidence with regard to Rape Shield?21 MRS. MACKEY: That’s correct, Judge.22 THE COURT: And the People?23 MR. HURLBERT: No further evidence, Judge.24 THE COURT: All right. And we had previously25 indicated that there would be supplemental closing argument 60 1 on the Rape Shield submitted in writing to accompany the 2 earlier closing time. How much time would you like to have 3 for that? 4 MS. BAKKE: Five working days. 5 MRS. MACKEY: That’s fine. 6 THE COURT: Well, let’s see. Does that count 7 today or — okay. 29th. 8 MS. BAKKE: That would be great. 9 THE COURT: Now, the scheduling order indicated10 other outstanding issues. We’ve already discussed some of11 the anticipated proceedings on the 19th. I think that we12 need to — I still need to find some information with regard13 to the jury questionnaire procedure. The administrator was14 supposed to talk to the printing company with regard to15 alternatives of either including it — it would have to be16 reset in order to modify the juror response itself, which17 was something that they indicated would be a considerable18 cost, so we’re exploring another alternative with regard to19 some enclosure of a questionnaire, but of course that would20 also require the enclosure of the envelope to have the21 return.22 So I’m not any better informed at this point as to23 that possibility. What I might want to do is to establish a24 conference call with counsel to discuss what the results25 are, and then try to identify the trial date. 61 1 MR. HURLBERT: Judge, there’s no way that — I 2 mean, we could set a trial date today and have this stuff 3 going on. It really seems like the issues that you’re 4 talking about, though important, are very narrow and can be 5 going on while there is a trial date set. 6 As I said yesterday, if we — it gives us a couple 7 of weeks to decide on this before jury summonses go out, and 8 so — and if it does end up being that it’s just not going 9 to happen, it’s just not going to happen. That’s fine. The10 extra jury summons going out is what I mean, the extra11 questions.12 But, Judge, the People would prefer a trial date13 set today. There are a lot of issues that I don’t really14 want to go into right now, but the People feel that given15 the fact that we have a plea in this case, and I guess it’s16 just the fact that I’ve been prosecuting for ten years, when17 there’s a plea out there and there’s no trial date set, it18 really gives me — sends shivers up and down my spine. And19 maybe that’s a lot of it.20 But, Judge, we would really like to leave here21 today with a trial date, and I don’t really see why these22 issues with the jury questionnaire can’t be going on while23 our date is set.24 THE COURT: Not knowing what your other concerns25 are, you know as well as I do that this Court regularly and 62 1 consistently has been able to set matters for trial within 2 two to three months based upon not only the criminal but 3 civil case management. I’m not worried about us being able 4 to get a trial date well within the speedy trial time. 5 MR. HURLBERT: And I do understand that, and it is 6 true, Judge, it has been my experience that you have set 7 things within two or three months. Of course it’s also been 8 my experience that we almost always have a trial date set at 9 the entry of plea. So — and –10 THE COURT: Well, that gets us back into why we11 went forward with the entry of plea.12 MR. HURLBERT: Judge, all I’m asking for is a13 trial date set today. That’s really what I’m asking for.14 THE COURT: Well, I’ve already indicated that I’m15 not going to do that until such time as I have sufficient16 information to know exactly what sort of time frame we need17 to accomplish the questionnaire process and determine18 whether or not I’m going to go forward with the preliminary19 questionnaire. Then I will know exactly what the time frame20 is.21 Now, if — yesterday it was indicated that both22 sides had concerns with regard to out-of-state witnesses and23 scheduling, and I understand that. That, however, just24 means that you want me to give you a sufficient amount of25 time to be able to accomplish the execution of those 63 1 out-of-state witness subpoenas. And if you tell me how much 2 time you want, then I will wage that accordingly and set the 3 trial. 4 MR. HURLBERT: What we’re looking at, Judge, is an 5 August trial date, and the defense says they need two months 6 to get out-of-state subpoenas. If we are looking at August 7 30th we are talking about setting a trial date by June 30th. 8 THE COURT: I agree with your calendar 9 calculation. That’s what we’re looking at. I’m hoping that10 I would have a sufficient amount of information to be able11 to do that.12 MR. HURLBERT: And so what sort of time frame are13 we looking at, Judge?14 THE COURT: Well, that’s what I was getting to in15 terms of setting a conference call where we can do that.16 I mean, this case is going to get set when I say17 it’s getting set. I mean, we’re not going to have a problem18 working into the calendar here, and unfortunately everybody19 knows that the other matters that are set in this courtroom20 and the other courtroom will be affected by the dates.21 But it’s not likely to have to worry about that.22 It gets set to commence the last week in August, the first23 week in September. Why don’t you tell me, I mean, you keep24 saying an August trial date. You’ve been saying that for a25 long time. Is there something important enough that I need 64 1 to know about it that distinguishes an August trial date 2 from a September trial date, other than your desire. 3 Because we have speedy trial November 11th, and I’m not 4 talking about an October trial date. I’m just trying to 5 narrow in. 6 You know, you’ve said it before, you’ve said it 7 today, you want an August trial date. That’s pretty unusual 8 for anybody to make a specific request to the Court as to 9 when we want the trial date.10 MR. HURLBERT: And I understand that.11 THE COURT: And I want to take into consideration12 any important factors that you have that are relevant to the13 Court, as well as relevant to you or Mr. Bryant’s attorneys.14 MR. HURLBERT: Well, Judge, I mean, first of all15 you did ask at one point, so –16 THE COURT: Yeah, but –17 MR. HURLBERT: So I don’t want to be thinking that18 I’m trying to force –19 THE COURT: I asked yesterday and I took what you20 had to say to heart. Today you’re much more emphatic about21 you want me to set it today, and you want an August trial22 date, and I’m just trying to find out what that’s based23 upon, other than just some desire.24 MR. HURLBERT: Here are two of the reasons, Judge.25 Unfortunately, unlike the defense, we have a very limited, 65 1 limited budget. And the longer this drags on the harder it 2 is to — to make those — make that budget meet. The budget 3 is something that especially with what we are dealing with 4 is taxpayer money, so I don’t want to be overspending 5 taxpayer money. 6 The second thing is we would like a definite trial 7 date as soon as possible, because Mr. Crittenden and myself 8 and Ms. Bakke and Ms. Easter are going to basically have to 9 clear our plates 100 percent, and so we are looking at what10 we need to get — we are looking at how long we need to do11 it and when we need to start doing it. And so that’s why we12 are asking for a trial date right away.13 I guess as soon as possible. I apologize for14 right away.15 THE COURT: I have those same stress factors16 involved, budget and personal, professional calendar. I’m17 not going to address that in a comparative fashion to anyone18 else because I believe that everyone is — and including19 Mr. Bryant, his attorneys, are experiencing the same.20 MR. CLUNE: Judge, can I address the Court on that21 issue?22 THE COURT: Sure, Mr. Clune.23 MR. CLUNE: Judge, and I don’t know to the extent24 that the prosecution is aware of this, but in regards to25 your question about a need for an August trial date, I can 66 1 tell the Court that from speaking with the victim in this 2 case, when this case is over, the things that she wants most 3 is to be able to enroll in school again. When we had the 4 proposed trial date of August 16th, that seemed like a 5 realistic possibility for this semester. We’re talking now 6 about August 30th. I don’t know if even August 30th keeps 7 that open as a realistic possibility. 8 But not to trump anybody else’s rights or the 9 procedure that’s required through this court, but that was10 one of the considerations that the victim was concerned11 about in regards to the scheduling of a trial date.12 THE COURT: I know, as I’ve stated just a few13 minutes ago, that this case has put a significant amount of14 change if not stress on everyone involved, personally and15 professionally, and with their lives. I have up to a week16 ago endeavored to maintain my full case load and all the17 matters that were pending on it, which is around 240 cases.18 I know that Mr. Hurlbert has had homicide19 prosecutions and I had a murder trial in Clear Creek in20 April, and I know that the defense team has been working21 extensively on this, and I assume that it’s not the only22 case.23 I know that we’ve had months — well, days and24 days of hearings over months and months, and that the burden25 is now on the Court with regard to several of those rulings 67 1 on those hearings. 2 I also know that, as I calculated yesterday and 3 did not go into when we were discussing the trial, that 4 since the victim’s initial request for setting the matter 5 for trial, the People have filed 41 motions, responses, 6 replies, or briefs. The defense has filed 46 motions, 7 responses, replies, or briefs. The other interested 8 parties, including the media, have filed 11. 9 I have found myself in a situation, as I10 indicated, one, where I cannot any longer handle the11 remainder of any of the rest of my docket and have sought12 assistance for that.13 Two, while I have been attempting to concentrate14 on the substantial outstanding issues, one of which we just15 completed the evidentiary portion today, I have had to16 address a number of matters that have been raised in those17 motions, responses, replies, and briefs. One of those18 examples, of course, was the show cause. And I’m not19 pointing fingers at anybody, but I had to spend a20 substantial amount of time on that and other issues.21 Now I’m indicating that for a variety of reasons,22 including the determination with regard to the23 questionnaire, I’m not prepared to specifically set a trial24 date, even though I’ve given you what any reasonable person25 would understand to be very limited parameters within which 68 1 I’m focusing on possible trial dates. 2 I don’t see that me identifying it today is any 3 less productive than identifying it within the next week to 4 ten days. And because of those things that I’ve just said, 5 without repeating them ad nauseam, I don’t intend to set a 6 specific date today. 7 I know that everyone has schedules that they need 8 to meet, and I know that I have those responsibilities that 9 I’ve already identified. But I don’t see that setting it10 today will do that.11 And I also have no desire to feed the beast that’s12 outside the door that insists on knowing a trial date at13 this point in time. I will be happy to set a time when we14 can have a conference call, and I can advise you of the15 specifics with regard to the juror questionnaire, and we can16 discuss the time frames and other issues and identify a17 trial date.18 I had asked previously, and I indicated at that19 time and I will say again, that I don’t want to be20 presumptive enough to believe that this case is totally21 different than any other case, and we are proceeding outside22 the presence of the public.23 Are there or have there been any discussions with24 regard to disposition of this case? Because when I set the25 trial date and we engage in that process, there’s a 69 1 substantial cost that the state incurs also, and I always 2 ask that question. 3 MR. HURLBERT: Judge, there has been brief 4 discussions, and it appears that the sides are very far 5 apart in this case, and I don’t see a plea at this time. 6 THE COURT: Well, the key phrase was “at this 7 time.” 8 MR. HURLBERT: Or the foreseeable future, I guess, 9 Judge.10 THE COURT: And you know my policy. If we set11 this for trial, it’s over as far as plea negotiations, and12 I’m not suggesting that you need to enter into any further,13 but I am indicating that if you have any consideration of14 it, that I can give you an appropriate amount of time before15 we identify the trial date.16 MS. BAKKE: Judge, I think that the rulings that17 are pending certainly change the status of the case for18 either side.19 THE COURT: I hear that all the time. I’ve even20 had an argument that it’s a chilling effect, and I don’t buy21 it. I understand what you’re saying. I know you’re very22 experienced, and I’m only in this entering my 30th year, but23 my policies are ones which I believe to be appropriate.24 You know, we are where we are in this case, and25 I’ll take some responsibility for that, and I’m not going to 70 1 relieve any of you for some of that also. 2 MS. BAKKE: Judge, my only point was that if in 3 fact you were to rule that all of the Rape Shield evidence 4 were going to come in in this case, I’m thinking the 5 prosecution is going to sit down and reevaluate the quality 6 of its case and its chances of a successful prosecution. 7 I wasn’t trying to lay any blame on the Court, I’m 8 just saying that ruling, the ruling on the mental health 9 issues and the suppression of the defendant’s statements,10 make a significant change in the case, meaning the parties11 may have more or less willingness to negotiate based on12 that.13 THE COURT: That’s true. And if we set it for14 trial, it’s over. The cutoff is set, so. I don’t want to15 get into an analysis of the importance of that evidence,16 although I’m no different than you, I know the impact and17 potential consequences with regard to suppression versus18 that of the rulings on Rape Shield, and I have not factored19 in those effects.20 I think when you analyze the case you have to21 consider various alternatives, and when you analyze the case22 you have to consider the possible outcome of trial, and that23 is really in light of all of the evidence that you are aware24 of, which is even greater than what I am aware of, what you25 should look to and rely upon in terms of what your 71 1 evaluation of what your alternatives are. 2 In light of Mr. Hurlbert’s request and in light of 3 the timing and what I just said with having to deal with — 4 I don’t mean this lightly, I mean it absolutely 5 realistically, every time motions are filed I have to figure 6 out whether to give them the priority or whether to continue 7 working on those other issues, and to the detriment of the 8 process of getting decisions out on the major issues, I’ve 9 had to address other matters recently.10 There’s one of me with a half-time legal research11 attorney. And I know it sounds like whining, I’m just12 saying that’s just the way it is, and yesterday I talked13 about that a little bit, we had five attorneys here on the14 prosecution’s side, we’ve got three up front today on the15 defense, two in the back. You guys can produce paper faster16 than I can read it. Or even paperless. So I’m doing the17 best I can. And when I have that balanced against18 Mr. Hurlbert’s legitimate request for knowing the trial date19 as soon as possible, I just have to do what I can.20 So in light of all of that, how important is it21 that I give you a trial date today? Is it still your number22 one priority, Mr. Hurlbert?23 MR. HURLBERT: It is, Judge.24 THE COURT: Does the defense have any position on25 that, other than previously stated? 72 1 MR. HADDON: We don’t. We’ll be ready to go 2 whenever the Court thinks that it’s time to go, and I think 3 it’s really up to Your Honor in terms of making that 4 determination. So we’ve indicated we’ll be ready to go 5 whenever. 6 MR. HURLBERT: Judge? 7 THE COURT: I’m still here. 8 MR. HURLBERT: Judge, actually after talking with 9 Mr. Clune, if we could get a trial setting date within the10 next week, then I suppose I’ll withdraw my request for a11 trial date today.12 THE COURT: How about June 30th? I just hate to13 set it for Friday the 25th and then not have enough14 information to go forward. So the 30th kind of fits with15 everybody’s time frames.16 MRS. MACKEY: That’s fine with the defense, Judge.17 THE COURT: Is our traditional 12 o’clock as good18 as anything?19 MR. HADDON: That’s fine with us.20 THE COURT: Wednesday.21 MR. HURLBERT: That’s fine, Judge. Wednesday is22 fine.23 THE COURT: Okay. Thank you.24 MRS. MACKEY: Would you like me to set that up,25 Judge? 73 1 THE COURT: Please. 2 Are there any other issues that we need to address 3 at this time? 4 MR. HADDON: We have none. 5 MR. HURLBERT: None from the People. 6 THE COURT: And let me advise you that I — I 7 believe that the issue of a trial setting is one that is 8 primarily of importance to those of us who are participating 9 in the process. I think it would be inappropriate for any10 of you to communicate to the media in any way any expected11 or anticipated date at this time.12 Because I respect the importance to you, and13 ultimately it certainly is a matter of public information.14 But in the meantime I think it would be nothing but15 speculation, and inappropriate speculation, as to what might16 actually be the setting.17 MR. HURLBERT: That’s fine, Judge. Just for18 clarification, does that include the fact that there is a19 trial setting conference on June 30th? If it does, it does.20 I’m just –21 THE COURT: I know you want to say something to22 them, you have to say something when you go out there, if23 you want to. There’s a status conference June 30th. It’s24 not a trial setting conference for public information25 purposes. 74 1 MR. HURLBERT: Thank you, Judge. Thanks for the 2 clarification. 3 (This matter concluded at 11:10 a.m.) 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 REPORTER’S CERTIFICATE 6 I hereby certify that the above and foregoing 7 redacted transcript, containing 74 pages, is a true and 8 complete transcription of my stenotype notes taken in my 9 capacity as Official Reporter of District Court, Eagle10 County, Colorado, at the time and place above set forth.11 Any copies of the within transcript not containing12 an original certification page or not obtained from the13 undersigned reporter or through RealLegal are not certified14 for accuracy, including any transcripts posted on any15 internet site, as they are made outside of this reporter’s16 knowledge and control and subject to manipulation.17 Dated at Adams County, Colorado, this 2nd day of18 August 2004.19 20 21 22 ______________________________ Michelle L. Goodbee, RMR CRR23 24 25

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